Gauhati High Court
Jagannath Mahanta vs Md. Sadek Ali & Ors on 28 October, 2014
Author: N. Chaudhury
Bench: N. Chaudhury
IN THE GAUHATI HIGH COURT
( THE HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND
ARUNACHAL PRADESH )
RSA No. 94 of 2003
Sri Jagannath Mahanta,
Son of Late Sesha Chandra Dev Mahanta,
Resident of Malow Ali, Jorhat, P.S. Jorhat,
District: Jorhat, Assam.
..... Appellant
-Versus-
1) Md. Sadek Ali,
Son of Late Meher Ali,
Resident of Hengerabari,
P.O. & P.S. : Dispur,
District: Kamrup, Assam.
...... Respondent
2) Md. Babur Ali Sheikh, Son of Late Normal Sheikh, Resident of Hengerabari, P.O. : Hengerabari, P.S. - Dispur, District: Kamrup, Assam.
3) Musstt Chafina Bibi, Wife of Md. Abdul Rajak, Resident of Dohan Garigaon, P.S. Jalukbari, District: Kamrup, Assam.
4) Musstt. Juna Begum, Daughter of Late Meher Ali,
5) Mustt Rashida Begum, Wife of Jan Mohammad,
6) Md. Jan Mohammad, Father's name not known.
All are residents of Hengerabari, P.O. & P.S. : Dispur, District: Kamrup, Assam.
........Proforma Respondents RSA No.94 of 2003 Page 1 of 16 BEFORE HON'BLE MR. JUSTICE N. CHAUDHURY For the Appellant : Mr. K.K. Mahanta, Senior Advocate, Mr. S. Singh, Advocate.
For the Respondents : Mr. B.C. Talukdar, Advocate.
Date of hearing & judgment : 28.10.2014 JUDGMENT AND ORDER (Oral) The plaintiff of Title Suit No. 56 of 1991 of the Court of learned Civil Judge (Junior Division) No.3 at Guwahati has preferred this Second Appeal challenging the appellate judgment of reversal passed on 21.09.2002 by learned Civil Judge (Senior Division) No.1 at Guwahati in Title Appeal No. 26 of 1998, thereby dismissing the suit of the plaintiff.
[2] The plaintiff Mr. Jagannath Mahanta instituted Title Suit No. 56 of 1991 praying for a decree for declaration of his right, title and interest and recovery of possession of a plot of land measuring 2Kathas 11Lechas by Dag No. 207 of KP Patta No. 177 in village Hengerabari of Beltola Mouza in the District of Kamrup. The Plaintiff stated that original owner of the land was one Md. Babur Ali Sheikh (Proforma Defendant No.6) who transferred the land to Sakina Bibi (proforma defendant No.7) vide registered sale deed No. 1503/ 1379 dated 05.03.1962 on receipt of consideration of Rs.1000/- and handed over possession thereof. Sakina Bibi on turn sold the same land to the plaintiff by a registered sale deed no. 1653/ 1548 dated 17.02.1971 on a consideration of Rs.4999/- and handed over possession to the plaintiff. The plaintiff thereafter obtained demarcation through land records staff and erected boundary walls made of bricks on Western and Eastern boundaries in February, 1971. The boundaries at Northern and Southern side, however, were RSA No.94 of 2003 Page 2 of 16 tied up with trees and bamboos. There was a public road on the Northern boundary. The plaintiff claims to have made payment of land revenue regularly. He obtained mutation in the records of rights on 18.07.1981 vide mutation No. 725 of 1979-80. According to the plaintiff, in the early March 1985 he started construction of a residential house over the suit land but in the night of 14.03.1985 at about 9 P.M. the defendant attacked the plaintiff and demolished the construction made by him. Out of fear the plaintiff took shelter in the house of the neighbour, Udhav Kakoti and Monmohan Kalita. He lodged ejahar with Dispur Police Station on 15.03.1985 which ultimately led to registration of Case No. 155 M/85 under Section 145 Cr.P.C and the land was also attached under Section 146 Cr.P.C. The Magistrate, Guwahati, however, declared possession of the defendant on 28.11.1988 which was brought under challenge in Criminal Revision No. 65 of 1989 before this Court and the Revision Petition was dismissed on 18.12.1989 by this Court. Under such compelling circumstances, the plaintiff claimed to have instituted the suit for declaration of his right, title and interest on the basis of purchase and for recovery of possession by evicting the defendants and removing his men and materials from the suit land.
[3] On being summoned the defendant No.1 Md. Sadek Ali appeared and filed his written statement. The proforma defendants stayed away from the Court and so, the learned Court passed order deciding to proceed ex parte against them. The defendant No.1 stated in Paragraph-8 of the written statement that the land originally belonged to Md. Babur Ali Sheikh who was none other than his maternal grandfather. Suit land was originally annual patta land which was converted into periodic patta land on 21.11.1962 and so Md. Babur Ali Sheikh did not have any transferable title over the land on 02.03.1962 when he had executed sale deed in favour of Sakina Bibi. The sale deed, therefore, was illegal and void as vendor did not have any transferable right, title and interest over the land. The defendants also denied handing over of possession in favour of RSA No.94 of 2003 Page 3 of 16 Sakina Bibi. In Paragraph-19 of the written statement the defendant No.1 has stated his own fact. He claimed that initially he and his father Meher Ali had taken possession of suit land in the year 1960 for cultivation from the original owner. But in the year 1962 when Md. Babur Ali Sheikh wanted back his land, they not only refuse to vacate but asserted their right over the land openly and hostile to Md. Babur Ali Sheikh. Under such circumstance, the defendant No.1 claimed to have acquired title by way of adverse possession over the suit land. Apart from the claim of adverse possession, defendant No.1 did not make any other plea in regard to his claim of title over the suit land.
[4] On the basis of these rival contentions of the parties, the learned Trial Court framed as many as 4 issues and the same are as follows:
i) Whether the plaintiff has right, title and interest over the suit land and whether the defendants have right, title and interest over the suit land?
ii) Whether the plaintiff was dispossessed by defendants by way of trespass by applying force in March, 1985?
iii) Whether the defendants have any other right, other than ownership right over the suit land?
iv) Whether the plaintiff is entitled to get any relief or reliefs?
[5] The plaintiff examined as many as 4 witnesses and exhibited some documents in support of his contention.
[6] The learned Trial Court after consideration of the materials available on record decreed the suit by his judgment dated 21.11.1997 holding that the plaintiff acquired right, title and interest to the suit land on the basis of registered sale deed dated 17.02.1971 which is Exhibit-1 and on the basis thereof he got his name duly mutated in records of rights on 18.07.1981 vide Exhibit 2. Body was accordingly corrected and name of the plaintiff was incorporated RSA No.94 of 2003 Page 4 of 16 therein vide Exhibit-3. Accordingly, since 1973 plaintiff has been paying land revenue vide Exhibit-4 series. The learned Trial Court found that the defendant has failed to prove his claim of adverse possession and he was rather a permissive occupier under Md. Babur Ali Sheikh. Sadek Ali is an advocates clerk and is aware about the legal position of land transaction at Guwahati and made false claim with respect to the suit land. Learned Trial Court noted that the attesting witness of Exhibit-1 was none other than the father of the defendant No.1. This position of the plaintiff at night of 14.03.1985 was also found to be established by oral and documentary evidence and having so found it was held that that the plaintiff acquired right, title and interest over the suit land and that he was dispossessed from the suit land by the defendant No.1 on 14.03.1985.
[7] This judgment and decree dated 21.11.1977 was brought under challenge by the defendant No.1 before the learned First Appellate Court vide Title Appeal No. 26 of 1988. The learned Civil Judge (Senior Division) No.1, to whose Court the appeal was transferred, heard the parties, perused the records and thereupon passed his judgment on 21.09.2002 allowing the appeal and thereby, dismissing the suit reversing findings of the learned Trial Court. The learned First Appellate Court held that there was oral gift in favour of the defendant No.1 by original owner Md. Babur Ali Sheikh in the year 1960 itself and so he had no title to transfer in favour of Sakina Bibi on 02.03.1963. Consequently, Sakina Bibi could not have conveyed any title to the plaintiff by Exhibit -1 sale deed. At the same time, the learned First Appellate Court also held that apart from gift orally made by the original owner, uninterrupted and continuous possession of the defendant No.1 became adverse to the plaintiff and so right, title and interest of the plaintiff got extinguished thereby. According to the learned First Appellate Court jamabandi Exhibit-3 or mutation order Exhibit-2 could not create any title in favour of the plaintiff and so, the plaintiff was held to be devoid of any title to the suit land. The learned First Appellate Court also held that there is no cogent or clear corroborative evidence to RSA No.94 of 2003 Page 5 of 16 establish any construction over the land by the plaintiff and so deposition of the plaintiff is also not proved. Accordingly, the appeal was allowed in its entirety and the suit of the plaintiff was dismissed thereby. It is this judgment which has been brought under challenge in the present Second Appeal.
[8] This Court while admitting the Second Appeal on 20.06.2003 framed following 3 substantial question of law:
i) Whether the learned Court below erred in dismissing the suit of the plaintiff-appellant by entertaining the claim of oral gift in favour of defendant No.1/ respondent No.1 in absence of any pleading in support thereof?
ii) Whether the learned Court below erred in discarding the sale deed of the plaintiff appellant, Exhibit-1on the ground that his vendor Sakina Bibi had no right, title and interest in the suit land in view of the oral gift claimed by the defendant- respondent No.1?
iii) Whether the learned Court below erred in dismissing the suit of the plaintiff-appellant on the ground that it was barred by the adverse possession of the defendant-respondent No.1?
[9] I have heard Mr. K.K. Mahanta, learned Senior Counsel assisted by Mr. S. Singh, learned counsel for the appellant and Mr. B.C. Talukadar, learned learned counsel for the respondent. None appears for the proforma respondents.
[10] Mr. K.K. Mahanta, learned Senior Counsel, would argue that learned First Appellate Court committed error in arriving at a finding that Md. Babur Ali Sheikh had made oral gift in favour of the defendant No.1, there was no pleading to that effect. Drawing attention of the Court to Paragraph-19 of the written statement, the learned Senior Counsel would argue that the only pleaded case of the defendant No.1 was that defendant No.1 and his father initially RSA No.94 of 2003 Page 6 of 16 started cultivating the suit land as permissive occupier but since 1962 their possession became hostile to the original owner and so by efflux of time their possession matured into valid title. There was no whisper anywhere in the written statement in regard to the case of oral gift but in course of his disposition the defendant No.1 as DW1 stated for the first time that Md. Babur Ali Sheikh had made oral gift in his fvour in the year 1960. Such a plea being beyond pleading should not be considered by the learned First Appellate Court and so the only basis for reversing the learned Trial Court's judgment being untenable the impugned First Appellate judgment is liable to be set aside and quashed and substantial questions of law No.1 & 2 are required to be answered in favour of the appellant. The learned Senior Counsel would further argue that while the defendant No.1 pleaded adverse possession in his written statement did not utter a single word after coming to the witness box and so, there was nothing on record to hold that title of the plaintiff was extinguished by adverse possession of the defendant No.1 and therefore, the third substantial question of law is also required to be decided in favour of the plaintiff/ appellant and consequently, the Second Appeal is liable to be allowed restoring the judgment and decree passed by the learned Trial Court.
[11] Per contra, Mr. B.C. Talukdar, learned counsel for the respondent would argue that there may not be materials on record to support the plea of adverse possession in favour of the defendant and there may not be any scope to support the finding of oral gift in favour of the defendant No.1 in the absence of any pleading to that effect but since plaintiff has to stand on his own legs and since, he did not lead any evidence whatsoever, to prove sale in favour of Sakina Bibi by Md. Babur Ali Sheikh, Exhibit-1 itself would not be sufficient to establish the title of the plaintiff when acquisition of title by his vendor remains improved. The plaintiff was duty bound to produce sale deed of his vendor and in the absence of the sale deed executed by Md. Babur Ali Sheikh in favour of Sakina Bibi, it cannot be hold RSA No.94 of 2003 Page 7 of 16 that vendor of the plaintiff did acquire any title to the suit land and so the suit of the plaintiff was rightly dismissed by the learned First Appellate Court reversing the findings of the learned Trial Court.
[12] The learned First Appellate Court has allowed the appeal and decided issue No.1 and 3 in favour of the defendant and against the plaintiff on proposition that prior to execution of sale deed in favour of Sakina Bibi, original owner Md. Babur Ali Sheikh had exhausted his title by way of making gift in favour of the defendant No.1 orally and so, even if there is a sale deed in favour of Sakina Bibi, the same was illegal and inoperative. It is also finding of the learned First Appellate Court that there is no evidence to prove that Sakina Bibi purchased the suit land from its original owner Babur Ali Sheikh and there was no evidence to held that Sakina Bibi was in possession of the land in any point of time. On the other hand, DW1, who is none other than the defendant No.1, stated in course of his evidence that the suit land was gifted in his favour by Md. Babur Ali Sheikh in the year 1960 and possession was given to him. The learned First Appellate Court also held that uninterrupted and continuous possession of the contesting defendant had become adverse to the plaintiff and his right, title and interest even if there be any, got extinguished in the process. Now, it is to be seen as to whether these findings of the learned First Appellate Court are based on the materials available on record. At the cost of repetition it can be said that the only pleaded case of the defendant No.1 is that of adverse possession and there is no plea in regard to oral gift in his favour. This claim has been made for the first time after he entered into witness box and admittedly such a stand is beyond pleading. It is established law that no amount of evidence led in a case which is beyond pleading can be taken into consideration while deciding a case. So, in the absence of any pleading to that effect the learned First Appellate Court committed error of law in taking such deposition of the defendant No.1 into consideration while passing his judgment and this part of the judgment, therefore, cannot be sustained. Coming to the finding of the adverse possession, the RSA No.94 of 2003 Page 8 of 16 learned First Appellate Court claims that uninterrupted possession of the defendants over the suit land for all these years became adverse to the plaintiff and so, even if he had any title, the same got extinguished because of adverse possession of the defendant No.1. Law of adverse possession required that there has to be specific pleading and proof in regard to possession of the defendant over a plot of land as hostile, open and specific from a particular date. The defendant is duty bound to plead and prove the specific dates since which his possession become adverse to the real owner. Here in this case although there was pleading as to adverse possession but defendant No.1 abandoned the pleading after coming to the witness box and deposed on a different ground as permissive occupier and oral gift. If the defendant No.1 switched over to a new plea of oral gift by discarding his earlier stand on adverse possession then the learned First appellate Court ought to have held that defendant No.1 failed to discharge his burden to prove his adverse possession but in spite of doing so, the learned First Appellate Court found that defendant No1 had adverse possession over the suit land without there being any whisper by defendant No.1 himself in his deposition or by any witness. This finding as to adverse possession, therefore, is not based on any evidence and is an example of perverse finding. The substantial question No.3, therefore, is decided in favour of the appellant and against the defendant.
[13] Once the plea of adverse possession of the contesting defendant fails then it is to be seen as to whether the plaintiff has been entitled to get a decree as prayed for on the basis of the materials placed on record by him. The plaintiff claimed to have purchased the land from one Sakina Bibi by registered sale deed dated 17.02.1971 Exhibit-1. In course of his evidence, the plaintiff stated that attesting witness of the sale deed was one Meher Ali who is none other than the father of the contesting defendant No.1. On the face of such specific assertion by the plaintiff in course of his examination-chief that father of defendant No.1 was the attesting witness by Exhibit-1 sale deed, there was no cross examination from RSA No.94 of 2003 Page 9 of 16 the side of the contesting defendant on this point. It is under such circumstances, the learned Trial Court noted that Exhibit-1 was attested by Mehar Ali, the father of the plaintiff. In Exhibit-1 there is specific recital as to receipt of consideration money and handing over of possession by the owner Sakina Biwi in faovur of the plaintiff. The defendant No.1 claimed in Paragraph-19 of the written statement that he and his father possessed the suit land since 1960 as permissive occupier of the original owner. Now, in Exhibit-1 sale deed dated 17.02.1971 this father of the defendant No.1 attested the sale deed which shows that Sakina Bibi was in possession of the land as on 17.02.1971 and she transferred title and handed over possession to the plaintiff on that date. The defendant No.1, therefore, was duty bound to cross-examine the plaintiff on this point to discredit him. Purchase by plaintiff on 17.02.1971 was followed by his mutation in the records of rights by order dated 18.07.1981. Exhibit 3 is a certified copy of jamabandi which shwos that suit land was mutated in favour of the plaintiff by order dated 18.07.1981 passed by the SDC in Mutation Case No. 725/ 79-80. Exhibit 2 is this order dated 18.07.1981 which contains a recital that Sakina Bibi had purchased the land on 05.03.1962 by registered sale deed from Md. Babur Ali Sheikh. Although plaintiff did not produce any record of right to show that Sakina Bibi's name was duly mutated in the records of right, but this lacuna has been filed up by none other than contesting defendants by proving Exhibit-'Ka' & 'Kha'. In Exhibit- 'Ka' there is an endorsement dated 05.01.1963 in regard to mutation of the name of Sakina Bibi pursuant to sale by original owner Md. Babur Ali Sheikh. Dag number of the land transferred by Md. Babur Ali Sheikh in favour of Sakina Biwi is described as Dag No 207 (new) and Dag No. 224 (old). So, it cannot be said that there is nothing on record to hold that Sakina Bibi had purchased the land from Md. Babur Ali Sheikh. The endorsement evidencing mutation in favour of Sakina Bibi on the basis of purchase is as old as 05.01.1963. In that view of the matter, the objection raised by Mr. B.C. Talukdar that non production of sale deed dated 05.03.1962 is fatal cannot be countenanced.
RSA No.94 of 2003 Page 10 of 1614] In the case of Amiya Bala Dutta. Vs. Mukut Adhikari reported in (1999) 1 GLR 229, this Court held that production of sale deed is not always necessary to establish the title of a person. It can be established by adducing other evidences also. Considering various judgments of the Hon'ble Supreme Court as well as the provision of Assam Land and Revenue Regulation, this Court held in Paragraph- 9 of the reported judgment that record of rights as provided under Section 40 & 41 of Assam Land Revenue Regulation shall always be deemed to be correct unless the contrary is proved and presumption attached to the records of rights under these sections must be given due weightage. Paragraph-9 of the case of Amiya Bala Dutta (Supra) is quoted below:
"9. Under the Assam Land and Revenue Regulation a person who is a patta holder is deemed to be a land holder and he has permanent, heritable and transferable right of use and occupancy in his land subject to Section 9 of the Assam Land and Revenue Regulation and if a person in order to establish his title produces a patta that must be given due weightage inasmuch as a patta is issued in accordance with the provisions of Section 17 read with the Rules and that must be considered to be a document of title and this is always considered to be a document of title. Further the record of rights as provided under Sections 40 & 41 of the Assam, Land and Revenue Regulation shall always be deemed to be the correct unless the contrary is proved and that presumption which is attached to the record of rights under Sections 40 & 41 must be given due weightage and that is what was done by the learned lower appellate court. Regarding mutation entries it cannot be brushed aside and it must receive due consideration at the hand of the Court. Of court, it must be ascertained that the mutation entries were done properly. If it is found that the mutation entries was not done properly and/ or if it is collusive and fraudulent, that mutation entries will not create any right."
15] By Exhibit 'Ka' name of Sakina Bibi has been incorporated in the patta pursuant to purchase made by her. Mutation entry is based on prima facie title and actual possession. It is done either by field RSA No.94 of 2003 Page 11 of 16 mutation or by chitha mutation on being satisfied that the applicant is in possession of the land apart from being holder of prima facie title. Patta is also a document of title and so incorporation of name of Sakina Bibi in Exhibit-'Ka' vide Exhibits-2 & 3 are sufficient evidence to arrive at a finding that Babur Ali Sheikh transferred title and possession in favour of Sakina Bibi.
16] The objection raised by Mr. B.C. Talukdar, learned counsel for the respondent in regard to necessity of production of sale deed executed by Md. Babur Ali Sheikh in favour of Sakina Bibi on 05.03.1962 can be viewed from another dimension. Exhibit-2 shows that Revenue Officer was satisfied in regard to transfer of title by Md. Babur Ali Sheikh in favour of Sakina Bibi vide registered sale deed dated 05.03.1962. Exhibit-Ka shows that consequently there was mutation of Sakina Bibi in the records of rights. Now, if defendant had any doubt as to execution of sale deed by Md. Babur Ali Sheikh in that event learned Trial Court could have asked for the same by invoking power under Section 30 of the Code of Civil Procedure and by enforcing production of the concerned sale deed. Section 30 of the Code of Civil Procedure has vested power and jurisdiction on Civil Court to call for documents and to enforce attendance and witnesses for the purpose of finding out the truth. Normally, Civil Court do not take recourse to the provision of Section 30 of the Code of Civil Procedure and in the process scope for confusion remains. This being the position the judgment passed by the Hon'ble Supreme Court in the case Maria Margarida Sequeira Fernandes and Others vs. Erasmo Jack De Sequeira reported in (2012) 5 SCC 370 needs to be observed. In Maria Margarida Sequeira Fernandes (Supra) the Hon'ble Supreme Court held that truth is the foundation of the justice and it must be the endeavour of the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. The Hon'ble Supreme Court, therefore, held that provision under Section 30 of the Code of Civil Procedure ought to be frequently used by the Court in RSA No.94 of 2003 Page 12 of 16 deciding Civil cases but the same is rarely pressed in service. Paragraphs-41 to 52 of the judgments is quoted below:
41. In civil cases, adherence to Section 30 CPC would also help in ascertaining the truth. It seems that this provision which ought to be frequently used is rarely pressed in service by our judicial officers and judges.
42. Section 30 CPC reads as under:-
30. Power to order discovery and the like. - Subject to such conditions and limitations as may be prescribed, the Court may, at any time either of its own motion or on the application of any party, -
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit
43. "Satyameva Jayate" (Literally: "Truth Stands Invincible") is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows:
"Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides."
44. Malimath Committee on Judicial Reforms heavily relied on the fact that in discovering truth, the judges of all Courts need to play an active role. The Committee observed thus:
2.2.......... In the adversarial system truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt. The State discharges the obligation to protect life, liberty and property of the citizens by taking suitable preventive and punitive measures which also serve the object of preventing private retribution so essential for maintenance of peace and law and order in the society doubt and gives the benefit of doubt to the accused. It is the parties that determine the scope of dispute and decide largely, autonomously and in a selective manner on the evidence that they decide to present to the court. The trial is oral, continuous and confrontational. The parties use cross-examination of witnesses to undermine the opposing case and to discover information the other side has not brought out. The judge in his anxiety to maintain his position of neutrality never takes any initiative to discover truth. He does not correct the aberrations in the investigation or in the matter of production of evidence before court........"
2.15 "The Adversarial System lacks dynamism because it has no lofty ideal to inspire. It has not been entrusted with a positive duty to discover truth as in the Inquisitorial System. When the investigation is perfunctory or ineffective, Judges seldom take any initiative to remedy the situation. During the trial, the Judges do not bother if relevant evidence is not produced and plays a passive role as he has no duty to search for truth....."RSA No.94 of 2003 Page 13 of 16
2.16.9. Truth being the cherished ideal and ethos of India, pursuit of truth should be the guiding star of the Criminal Justice System. For justice to be done truth must prevail. It is truth that must protect the innocent and it is truth that must be the basis to punish the guilty. Truth is the very soul of justice. Therefore truth should become the ideal to inspire the courts to pursue. This can be achieved by statutorily mandating the courts to become active seekers of truth. It is of seminal importance to inject vitality into our system if we have to regain the lost confidence of the people. Concern for and duty to seek truth should not become the limited concern of the courts. It should become the paramount duty of everyone to assist the court in its quest for truth.
45. In Chandra Shashi v. Anil Kumar Verma (1995) 1 SCC 421 to enable the Courts to ward off unjustified interference in their working, those who indulge in immoral acts like perjury, pre-variation and motivated falsehoods have to be appropriately dealt with, without which it would not be possible for any Court to administer justice in the true sense and to the satisfaction of those who approach it in the hope that truth would ultimately prevail. People would have faith in Courts when they would find that truth alone triumphs in Courts.
46. Truth has been foundation of other judicial systems, such as, the United States of America, the United Kingdom and other countries.
47. In James v. Giles et al. v. State of Maryland 386 U.S. 66, 87, S.Ct. 793), the US Supreme Court, in ruling on the conduct of prosecution in suppressing evidence favourable to the defendants and use of perjured testimony held that such rules existed for a purpose as a necessary component of the search for truth and justice that judges, like prosecutors must undertake. It further held that the State's obligation under the Due Process Clause "is not to convict, but to see that so far as possible, truth emerges."
48. The obligation to pursue truth has been carried to extremes. Thus, in United States v. J.Lee Havens 446 U.S. 620, 100 St.Ct.1912, it was held that the government may use illegally obtained evidence to impeach a defendant's fraudulent statements during cross-examination for the purpose of seeking justice, for the purpose of "arriving at the truth, which is a fundamental goal of our legal system".
49. Justice Cardozo in his widely read and appreciated book "The Nature of the Judicial Process" discusses the role of the judges. The relevant part is reproduced as under:-
"There has been a certain lack of candour," "in much of the discussion of the theme [of judges' humanity], or rather perhaps in the refusal to discuss it, as if judges must lose respect and confidence by the reminder that they are subject to human limitations." I do not doubt the grandeur of conception which lifts them into the realm of pure reason, above and beyond the sweep of perturbing and deflecting forces. None the less, if there is anything of reality in my analysis of the judicial process, they do not stand aloof on these chill and distant heights; and we shall not help the cause of truth by acting and speaking as if they do."
50. Aharon Barak, President of Israeli Supreme Court from 1995 to 2006 takes the position that:
"For issues in which stability is actually more important than the substance of the solution - and there are many such case - I will join the majority, without restating my dissent each time. Only when my dissenting opinion reflects an issue that is central for me - that goes to the core of my role as a judge - will I not capitulate, RSA No.94 of 2003 Page 14 of 16 and will I continue to restate my dissenting opinion: "Truth or stability - truth is preferable".
"On the contrary, public confidence means ruling according to the law and according to the judge's conscience, whatever the attitude of the public may be. Public confidence means giving expression to history, not to hysteria. Public confidence is ensured by the recognition that the judge is doing justice within the framework of the law and its provisions. Judges must act - inside and outside the court - in a manner that preserves public confidence in them. They must understand that judging is not merely a job but a way of life. It is a way of life that does not include the pursuit of material wealth or publicity; it is a way of life based on spiritual wealth; it is a way of life that includes an objective and impartial search for truth."
51. In the administration of justice, judges and lawyers play equal roles. Like judges, lawyers also must ensure that truth triumphs in the administration of justice.
52. Truth is the foundation of justice. It must be the endeavour of all the judicial officers and judges to ascertain truth in every matter and no stone should be left unturned in achieving this object. Courts must give greater emphasis on the veracity of pleadings and documents in order to ascertain the truth.
17] Keeping in view the aforesaid observation made by the Hon'ble Supreme Court in the context of extent and importance of Section 30 of the Code of Civil Procedure it can be said that even if plaintiff or defendant did not produce the particular sale deed dated 05.03.1962, in that event the learned Civil Court was at liberty to take recourse to power vested under Section 30 of the Code of Civil Procedure and to suo moto call for the documents to reach the bottom of truth. In the case of Hritesh Tewari vs. State of U.P reported in (2010) 10 SCC 677 the Hon'ble Supreme Court held that every trial is a voyage of discovery in which truth is a quest. The Court, therefore, is to exercise the power vested on it to sub-serve the cause of justice and public interest and for getting the evidence in a suit to arrive at just and proper decision to uphold the truth. A Court cannot remain basing only to the proceeding before it and is duty bound to make use of the power vested on it to bring on record. The relevant facts for arriving at a justice position under the facts and circumstances of any case.
18] Be that as it may, in the case in hand there are evidence on record to come to a finding that on 05.03.1962 Babur Ali Sheikh executed sale deed in favour of Sakina Bibi leading to incorporation RSA No.94 of 2003 Page 15 of 16 of her name in the patta. Exhibits-'Ka', 'Kha & Exhibits -2 & 3 are documentary evidence in support of such premises. The learned First Appellate Court failed to notice these documents in the light of the judgments referred to above and consequently the finding arrived at by the learned First Appellate Court has been vitiated thereby. The substantial questions No. 1 & 2, therefore, are answered in favour of the plaintiff/ appellant. The learned First Appellate Court committed error in considering the claim of oral gift of the defendant No1 which is beyond pleading and also fell in error in construing Exhibit-1. Exhibit-1 sale deed conferred con title to the plaintiff. All the substantial question of law thus having been decided in favour of the appellant, the Second Appeal is allowed.
19] Impugned First Appellate Court judgment and decree are set aside and judgment passed by the learned Trial court is restored.
20] Draw up decree accordingly and send back Lower Courts records.
JUDGE sumita RSA No.94 of 2003 Page 16 of 16